Prakash Vithoba Kombde & Anr. vs The State Of Maharashtra

. This Appeal takes exception to the judgment and award dated 8^th June 1998 passed in Special Case SCST No.13 of 1997 for the offences punishable under Section 376 and 506 read with Section 34 of the Indian Penal Code (‘IPC’ for short), whereby the Accused were convicted for these offences and sentenced to suffer imprisonment for 5 years and 1 years respectively with fine.

Though the offence came to be registered under the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘SCST Act’), so also under the Penal Code, the Trial Court has not framed charge against the offences under the Atrocities Act. The charge came to be framed against them for offences under Section 376 and 506 read with Section 34 of IPC.

The case of the prosecution before the Trial Court is that the victim who is aged about 30 years lodged report with the police complaining that on 14^th February 1997 at around 5.00 p.m. accused were grassing their cattle in the agricultural field belonging to the aunt of victim. Both Accused approached her and told her that they would like to show the place where the cattle dung was laying. They took her to the stream lane by dragging her. When she raised alarm Accused No.1 threatened her to kill. She states that she was sexually abused and forcible intercourse was committed by them at the said dry stream. On the same day she could not lodge report as her aunt was not at home. On the next day when she came back from Nashik, both went to the Police Station and offence came to be registered. Investigation was carried out into the said crime which has resulted into the filing of charge-sheet before the Competent Court.

The learned Trial Court did not frame charges for the offence under the Atrocities Act but charges were framed for the offences under Section 376 and 506 read with Section 34 of the IPC. Since, the Accused denied the charges, they were tried.

The prosecution examined five witnesses including prosecurtix- PW-2, Dr.Sidheshwar-PW-1 and Dr.Vanere-PW-3 Phulabai, Aunt of the prosecutrix was also examined and the evidence was concluded with the examination of the Investigating Officer. The learned Trial Court accepted the version of prosecutrix to be reliable in order to record conviction against the Accused person.

The learned counsel for the Appellant submits that the testimony of the prosecutrix is full of contradictions and hence not reliable. Attention of the Court is drawn to the statement of the prosecutrix which according to her indicate that she was dragged by the Accused at first instance and thereafter she was subjected to the sexual assault. The attention of the Court is further drawn to the cross-examination of victim wherein she claimed that she sustained number of injuries on her person including face, leg and hand etc., and those injuries were bleeding injuries. It is pointed out from the medical evidence that there were no injuries on the person of the prosecutrix much less any bleeding injuries. It is argued that only evidence of the lacerations found on the fourchette are accepted to be possible for the reasons mentioned in the cross-examination of medical officer. The cross-examination of the prosecutrix is referred in order to argue that there is admission of the prosecutirx with regard to the filing of the present complaint against the Accused as they tried to find out solution for the problem created by the Accused persons as there occurred frequent quarrels between them. It is submitted that having regard to the evidence on record it cannot be held that the prosecution has proved the guilt of the Accused beyond reasonable doubt.

The learned APP sought to support the impugned judgment and order by essentially pointing out the testimony of the victim/prosecutrix before the Trial Court. It is contented that there are no material inconsistencies in the statement of the proseuctrix and thus taking ground of quarrel between the parties cannot become a reason for false implication. He further drew attention of the Court to the evidence of the Medical Officer which according to him indicates that the possibility of sexual intercourse having been committed with the prosecutrix is not ruled out.

There cannot be two opinions with regard to the settled position of law that the victim of sexual assault needs to be believed if her testimony is found free from doubt and consistent on material aspects and in such case, the same can become sole basis for the conviction of the Accused.

Here in this case, prosecutrix claims that on 14^th February 1997 both Accused persons committed sexual assault on her and in the said incident she sustained number of bleeding injuries on her person. This version of the prosecutrix is not supported by the medical evidence on record. Evidence of Medical Officer Dr.Subhash indicates that there are no external injuries caused to the victim. It is pertinent to note that, on the next date of the occurrence of the incident, the medical examination of the prosecutrix has been conducted. In such circumstances, it is practically impossible that no injuries on the person could be noticed by the Medical Officer.

Though the Medical officer states about the appearance laceration on fourchette, however, in the cross-examination it is accepted that the said lacerations are possible due to itching and accidental hit by wooden piece. Similarly, it is admitted by doctor that the fluid found has not been ascertained to state that it is spermatozoa. Thus there is no conclusive evidence to indicate that the prosecutrix was subjected to forcible sexual intercourse by Appellants/Accused,

All these inconsistencies become extremely relevant, in view of the following admission given by the prosecutrix. :-

Having regard to the fact that the said admission coupled with the fact that there are material inconsistencies in the version of the prosecutrix with regard to the occurrence of the incident and in such circumstances it cannot be said that the prosecution has proved the guilt of the Accused beyond reasonable doubt. As a consequence of the above discussion, the Accused stands acquitted by giving benefit of doubt. Hence, order.

All pending Applications are disposed of.